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With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?…
Continue Reading Political Broadcasting Issues that Radio and TV Stations Should Be Thinking About Now As We Approach a Very Active Election Season

The Zapple Doctrine was an outgrowth of the FCC’s Fairness Doctrine.  The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well. Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued (see, for instance, our articles mentioning the continued life support of the Doctrine, here and here).  Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates.  Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC”s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead.

The cases just decided (available here and here) both involved the recall election of Wisconsin Governor Scott Walker, where complaints were filed against the renewals of two radio stations, complaining that those stations did not provide equal opportunities to supporters of Walker’s recall opponent even though station hosts provided on-air support for Walker.  The FCC rejected those complaints, declaring:

Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect.

So why didn’t the FCC’s equal opportunities rule, which is still in effect, apply to this situation?…
Continue Reading FCC Decides that it will No Longer Enforce the Zapple Doctrine – Killing the Last Remnant of the Fairness Doctrine

It’s political season, and somewhere, some on-air broadcast air personality is making the decision that they really want to change careers – and run for political office.  We’ve written about what a broadcaster needs to do when that decision is made by one of their personalities, but I guess not every broadcaster reads this blog, as a story in the Salem (Oregon) Statesman Journal from last week shows that there is still some confusion about what the rule provides.  So it is time for a little refresher on the issues that arise when an on-air personality runs for political office. 

We wrote about the issue last year, when a Chicago-area on-air talk show host decided to run for local office.  Then, we noted that the requirement that a station provide equal opportunities to a candidate who is opposing the on-air personality kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule (or “equal time” as some refer to it) is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates), and equal opportunites applies to state and local as well as Federal candidates. Once a candidate is qualified, even outside of the “political window”, equal opportunities apply. …
Continue Reading Equal Opportunities Issues that Arise When a Broadcast On-Air Personality Runs for Political Office

In odd years like 2013, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices. This week, the news has been full of stories about next week’s special election for Congress in South Carolina, pitting former South Carolina governor Mark Sanford against Elizabeth Colbert Busch, the sister of TV host Stephen Colbert. Obviously, for a Federal election like that for the Congressional seat they are competing to fill, broadcast stations serving the district they are seeking to serve need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country, as well, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply. 

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Continue Reading Reminder – Most FCC Political Rules Apply to Off-Year Elections for State and Local Offices

A recent article in the Chicago Tribune demonstrates that the FCC’s Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as “Equal Time“) to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races – such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.

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Continue Reading Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air – Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.

At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.

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Continue Reading Political Broadcasting Update Part 2 – Equal Opportunities

Political speech has been called the "life-breath of democracy" by the US Supreme Court and receives very strong First Amendment protection.  For that reason, the FCC has said that it will "not attempt to judge the truth or falsity of material broadcast regarding candidates or ballot issues."  That principle is sure to be tested in the wave of negative campaign ads we are likely to see between now and November, many of which will generate "cease and desist" letters from the subjects of those negative ads. Of course, broadcasters and cable operators alike are immune from liability for anything said in the context of a candidate "use" featuring a sponsoring candidate’s recognizable voice or image…the so-called "no censorship" rule.

There is, however, one type of political ad that could create potential liability for the media if allowed to run unchecked:  A third party or PAC attack ad that is defamatory. A defamatory ad is one that exposes the candidate to public hatred, shame, disgrace or ridicule.  Generally, these are ads that allege crime, fraud, dishonest or immoral conduct on the part of the candidate.  Truth is the only absolute defense to a defamatory claim.  Therefore, when defamation is alleged, substantiation should be requested.  Read on for details of a recent case study….

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Continue Reading Political Ad Content—When Do You Need to Worry?

In an 11th hour decision released at about 5 PM on the Friday before the Super Bowl,the FCC decided that TV station WMAQ-TV in Chicago was justified in denying Randall Terry’s request to buy advertising time in the Super Bowl.  As we’ve written before, Mr. Terry is claiming that he is a candidate for the Democratic nomination for President, and as such has a right of reasonable access to broadcast stations, meaning that they must sell him advertising time.  If he had such rights, the stations could not censor the content of the ads that the candidate decided to run (see our article here about the Communications Act’s no censorship rule).  As Mr. Terry has promised to run some very graphic antiabortion ads featuring images of aborted fetuses, many stations were reluctant to run the ads, especially in the Super Bowl when families will be watching the big game.  The FCC decided that WMAQ-TV acted reasonably in denying Mr. Terry time in the Super Bowl for two reasons: (1) he had failed to make a substantial showing of his candidacy for the Democratic presidential nomination in Illinois, and (2) even if he had, he had no right to demand that his ads be placed in the Super Bowl.  Each of these prongs of the decision clarifies some issues in the law of political broadcasting that had been long-debated, but the first part of the decision leaves questions – important questions to which many stations want answers.

The first prong of the decision concluded that WMAQ-TV was justified in determining that Mr. Terry was not a bona fide candidate for the Democratic nomination for President in Illinois as he was not on the ballot there, and had not made a "substantial showing" that he was otherwise a candidate in the state (see our discussion of the requirements to be a legally qualified candidate, here).  The FCC found that the station did not need to be a private investigator and ferret out every instance of campaign activity that Mr. Terry had engaged in within the state to determine if his activity was substantial.  Instead, the station could rely on the information that Terry presented to it when he made his request.  That information essentially amounted to the fact that he had made appearances in two small towns in the state, and had some campaign literature (though there was no evidence that it was ever distributed in Illinois).  Based on those facts, the Commission denied the request – concluding that he had not engaged in campaign activities throughout a substantial portion of the state, as required by prior FCC precedent.  While this may answer the question in this case (and helped to clarify the law as to the showing that write-in candidates need to make before they can demand reasonable access to broadcast stations), it leaves several questions unanswered for stations that have or may receive Mr. Terry’s request for airtime in other states where Mr. Terry is on the ballot.

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Continue Reading FCC Decides That Randall Terry Not Entitled to Run Graphic Anti-Abortion TV Ads in the Super Bowl For His “Presidential Campaign” – But Questions Remain

The FCC issued a declaratory ruling this week finding that Anderson Cooper’s new talk show appeared to be a bona fide news interview program exempt from equal opportunities under the FCC’s political broadcasting rules interpreting the mandate of Section 315 of the Communications Act. This ruling is another in a series of rulings by the FCC making…

Yesterday, FCC Chairman Genachowski issued a press release stating that the FCC was abolishing the Fairness Doctrine as part of its clearing of its book of 83 obsolete media rules.  What should the reaction of broadcasters be now that the Fairness Doctrine has been officially abolished?  Probably, a collective yawn.  In 1987 – almost 25 years ago – the FCC felt that it could not enforce the doctrine as it was an unconstitutional restriction on the freedom of speech of broadcasters.  Since then, we have had no instances where the FCC has tried to revive the doctrine.  While, as we have written before, the revival of the doctrine is a political issue that is from time to time bandied about as something horrible one political party or another plans to impose on America, there really has been no serious attempt to bring the doctrine back in this decade.  So the repeal of the actual FCC rule that sets out the doctrine is really inconsequential, as it practically changes nothing.

What remains unknown about yesterday’s announcement from the Chairman is just how far this repeal goes.  While certain corollaries of the Doctrine – including the political editorializing and personal attack rules – have been specifically mentioned in press reports as being repealed, the one vestige of the doctrine that potentially has some vitality – the Zapple Doctrine compelling a station to provide time to the supporters of one candidate if the station provides time to the supporters of another candidate in a political race, has never specifically been abolished, and is not mentioned in the Chairman’s statement.  Zapple, also known as "quasi-equal opportunities", has been argued in in various recent controversies, including in connection with the Swift Boat attacks on John Kerry, when Kerry supporters claimed that they should get equal time to respond should certain television stations air the anti-Kerry Swift Boat "documentary."  We have written about Zapple many times (see, for instance, here, in connection with the Citizens United decision).  What would be beneficial to broadcasters would be a determination as to whether Zapple has any remaining vitality, as some have felt that this doctrine is justified independent of the Fairness Doctrine.  Perhaps that clarification will come when the full text of the FCC action is released.

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Continue Reading FCC Repeals the Fairness Doctrine – Who Cares?